Thompson et al. v. Attorney General of Ontario

[Indexed as: Thompson v. Ontario (Attorney General)]

Ontario Reports
Ontario Superior Court of Justice,
Belobaba J.

October 17, 2013

118 O.R. (3d) 34 | 2013 ONSC 6357

Case Summary

Civil procedure — Costs — Discretion to award costs — Applicant unsuccessfully challenging constitutionality of amendments to Mental Health Act which expanded criteria for psychiatric assessment and involuntary committal and established coercive regime of community treatment orders — Partial costs award in favour of applicant appropriate in rare and exceptional circumstances of this case.

The applicant challenged the constitutionality of amendments to the Mental Health Act, R.S.O. 1990, c. M.7 which expanded the criteria for psychiatric assessment and involuntary committal and established a new and coercive regime of community treatment orders. The challenge was unsuccessful as the amendments were found to have been enacted for a dual purpose of public safety and improved treatment of the mentally ill. Had they been enacted solely or even primarily for public safety reasons, the applicant's submissions would likely have been found persuasive. The applicant sought its costs on a partial indemnity basis.

Held, the applicant should be awarded partial costs.

Awarding costs to an unsuccessful applicant, even in cases where there are important public interest dimensions, is highly unusual and only permitted in very rare cases. An order for partial costs was appropriate in this case. This was the first time in the 13 years since their enactment that the amendments had been challenged under the Charter. The applicant raised fundamental questions about individual freedom and the limits of government that at some point had to be tested in the courts. The non-profit applicant had limited financial resources. The applicant's counsel mounted a sophisticated and high-quality constitutional challenge. Some success was achieved as the application led the court to find that the impugned legislation may not be working as intended. If the applicant had sought advance funding or interim costs, it probably would have been awarded $100,000. The applicant should be awarded costs in the amount of $100,000.

Cases referred to

B. (R.) v. Children's Aid Society of Metropolitan Toronto, 1995 115 (SCC), [1995] 1 S.C.R. 315, [1994] S.C.J. No. 24, 87 O.A.C. 1, 122 D.L.R. (4th) 1, 176 N.R. 161, J.E. 95-243, 26 C.R.R. (2d) 202, 9 R.F.L. (4th) 157, 52 A.C.W.S. (3d) 1226, affg (1992), 1992 2831 (ON CA), 10 O.R. (3d) 321, [1992] O.J. No. 1915, 96 D.L.R. (4th) 45, 58 O.A.C. 93, 43 R.F.L. (3d) 36, 35 A.C.W.S. (3d) 697 (C.A.), affg 1989 7394 (MB CA), [1989] O.J. No. 205, 14 A.C.W.S. (3d) 10 (Dist. Ct.); British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371, [2003] S.C.J. No. 76, 2003 SCC 71, 233 D.L.R. (4th) 577, 313 N.R. 84, [2004] 2 W.W.R. 252, J.E. 2004-59, 189 B.C.A.C. 161, 21 B.C.L.R. (4th) 209, [2004] 1 C.N.L.R. 7, 43 C.P.C. (5th) 1, 114 C.R.R. (2d) 108, REJB 2003-51166, 127 A.C.W.S. (3d) 214; Horsefield v. Ontario (Registrar of Motor Vehicles) (1999), 1999 2023 (ON CA), 44 O.R. (3d) 73, [1999] O.J. No. 967, 172 D.L.R. (4th) 43, 118 O.A.C. 291, 134 C.C.C. (3d) 161, 62 C.R.R. (2d) 161, 42 M.V.R. (3d) 1, 42 W.C.B. (2d) 20 (C.A.); Little Sisters Books & Art Emporium v. Canada (Commissioner of Customs and Revenue), [2007] 1 S.C.R. 38, [2007] S.C.J. No. 2, 2007 SCC 2 …

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